Kitsap Cnty. v. Kitsap Rifle & Revolver Club

• Decision Date: 28 October 2014
• Docket Number: 43243–9–II.,Nos. 43076–2–II,s. 43076–2–II
• Court: Washington Court of Appeals
• Parties: KITSAP COUNTY, a political subdivision of the State of Washington, Respondent, v. KITSAP RIFLE AND REVOLVER CLUB, a not-for-profit corporation registered in the State of Washington, and John Does and Jane Does I–XX, inclusive, Appellants. In the Matter of the Nuisance and Unpermitted Conditions Located at One 72–acre parcel identified by Kitsap County Tax Parcel ID No. 362501–4–002–1006 with street address 4900 Seabeck Highway NW, Bremerton, Washington, Defendant.

184 Wash.App. 252

337 P.3d 328

KITSAP COUNTY, a political subdivision of the State of Washington, Respondent

v. KITSAP RIFLE AND REVOLVER CLUB, a not-for-profit corporation registered in the State of Washington, and John Does and Jane Does I–XX, inclusive, Appellants.In the Matter of the Nuisance and Unpermitted Conditions Located at One 72–acre parcel identified by Kitsap County Tax Parcel ID No. 362501–4–002–1006 with street address 4900 Seabeck Highway NW, Bremerton, Washington, Defendant.

Nos. 43076–2–II

43243–9–II.

Court of Appeals of Washington, Division 2.

Oct. 28, 2014.

Amended on Denial of Reconsideration Feb. 10, 2010.

Brian David Chenoweth, Brooks MacInnes Foster, Chenoweth Law Group, PC, Portland, OR, for Appellant.

Neil R. Wachter, Jennine E. Christensen, Christine M. Palmer, Kitsap County Prosecutors Office, Port Orchard, WA, for Respondent.

David Scott Mann, Gendler & Mann LLP, Seattle, WA, Amicus Curiae on behalf of Ck Safe & Quiet, LLC.

Matthew A. Lind, Sherrard McGonagle Tizzano, PS, Poulsbo, WA, Amicus Curiae on behalf of Kitsap Alliance of Property Owners.

C.D. Michel, Michel & Associates, P.C., Long Beach, CA, Richard B. Sanders, Goodstein Law Group, Tacoma, WA, Amicus Curiae on behalf of National Rifle Association, Inc.

Opinion

MAXA, J.

¶ 1 The Kitsap Rifle and Revolver Club appeals from the trial court's decision following a bench trial that the Club engaged in unlawful uses of its shooting range property. Specifically, the Club challenges the trial court's determinations that the Club had engaged in an impermissible expansion of its nonconforming use; that the Club's site development activities violated land use permitting requirements; and that excessive noise, unsafe conditions, and unpermitted development work at the shooting range constituted a public nuisance. The Club also argues that even if its activities were unlawful, the language of the deed of sale transferring the property title from Kitsap County to the Club prevents the County from filing suit based on these activities. Finally, the Club challenges the trial court's remedies: terminating the Club's nonconforming use status and entering a permanent injunction restricting the Club's use of the property as a shooting range until it obtains a conditional use permit, restricting the use of certain firearms at the Club, and limiting the Club's hours of operation to abate the nuisance.¹

¶ 2 We hold that (1) the Club's commercial use of the property and dramatically increased noise levels since 1993, but not the club's change in its operating hours, constituted an impermissible expansion of its nonconforming use; (2) the Club's development work unlawfully violated various County land use permitting requirements; (3) the excessive noise, unsafe conditions, and unpermitted development work constituted a public nuisance; (4) the language in the property's deed of sale from the County to the Club did not preclude the County from challenging the Club's expansion of use, permit violations, and nuisance activities; and (5) the trial court did not abuse its discretion in entering an injunction restricting the use of certain firearms at the shooting range and limiting the Club's operating hours to abate the public nuisance. We affirm the trial court on these issues except for the trial court's ruling that the Club's change in operating hours constituted an impermissible expansion of its nonconforming use. We reverse on that issue.

¶ 3 However, we reverse the trial court's ruling that terminating the Club's nonconforming use status as a shooting range is a proper remedy for the Club's conduct. Instead, we hold that the appropriate remedy involves specifically addressing the impermissible expansion of the Club's nonconforming use and unpermitted development activities while allowing the Club to operate as a shooting range. Accordingly, we vacate the injunction precluding the Club's use of the property as a shooting range and remand for the trial court to fashion an appropriate remedy for the Club's unlawful expansion of its nonconforming use and for the permitting violations.

FACTS

¶ 4 The Club has operated a shooting range in its present location in Bremerton since it was founded for “sport and national defense” in 1926. Clerk's Papers (CP) at 4054, For decades, the Club leased a 72–acre parcel of land from the Washington Department of National Resources (DNR). The two most recent leases stated that the Club was permitted to use eight acres of the property as a shooting range, with the remaining acreage serving as a buffer and safety zone.

Confirmation of Nonconforming Use

¶ 5 In 1993, the chairman of the Kitsap County Board of Commissioners (Board) notified the Club and three other shooting ranges located in Kitsap County that the County considered each to be lawfully established, nonconforming uses. This notice was prompted by the shooting ranges' concern over a proposed new ordinance limiting the location of shooting ranges. (Ordinance 50–B–1993). The County concedes that as of 1993 the Club's use of the property as a shooting range constituted a lawful nonconforming use.

Property Usage Since 1993

¶ 6 As of 1993, the Club operated a rifle and pistol range, and some of its members participated in shooting activities in the wooded periphery of the range. Shooting activities at the range occurred only occasionally—usually on weekends and during the fall “sight-in” season for hunting—and only during daylight hours. CP at 4059. Rapid-fire shooting, use of automatic weapons, and the use of cannons occurred infrequently in the early 1990s.

¶ 7 Subsequently, the Club's property use changed. The Club allowed shooting between 7:00 AM and 10:00 PM, seven days a week. The property frequently was used for regularly scheduled shooting practices and practical shooting competitions where participants used multiple shooting bays for rapid-fire shooting in multiple directions. Loud rapid-fire shooting often began as early as 7:00 AM and could last as late as 10:00 PM. Fully automatic weapons were regularly used at the Club, and the Club also allowed use of exploding targets and cannons. Commercial use of the Club also increased, including private for-profit companies using the Club for a variety of firearms courses and small arms training exercises for military personnel. The U.S. Navy also hosted firearms exercises at the Club once in November 2009.

¶ 8 The expanded hours, commercial use, use of explosive devices and higher caliber weaponry, and practical shooting competitions increased the noise level of the Club's activities beginning in approximately 2005 or 2006. Shooting sounds changed from “occasional and background in nature, to clearly audible in the down range neighborhoods, and frequently loud, disruptive, pervasive, and long in duration.”

CP at 4073. The noise from the Club disrupted neighboring residents' indoor and outdoor activities.

¶ 9 The shooting range's increased use also generated safety concerns. The Club operated a “blue sky” range with no overhead baffles to stop the escape of accidentally or negligently discharged bullets. CP at 4070. There were allegations that bullets had impacted nearby residential developments.

Range Development Since 1996

¶ 10 From approximately 1996 to 2010, the Club engaged in extensive shooting range development within the eight acres of historical use, including: (1) extensive clearing, grading, and excavating wooded or semi-wooded areas to create “shooting bays,” which were flanked by earthen berms and backstops; (2) large scale earthwork activities and tree/vegetation removal in a 2.85 acre area to create what was known as the 300 meter rifle range;² (3) replacing the water course that ran across the rifle range with two 475–foot culverts, which required extensive work—some of which was within an area designated as a wetland buffer; (4) extending earthen berms along the rifle range and over the newly buried culverts which required excavating and refilling soil in excess of 150 cubic yards; and (5) cutting steep slopes higher than five feet at several locations on the property.

¶ 11 The Club did not obtain conditional use permits, site development activity permits, or any of the other permits required under the Kitsap County Code for its development activities.

Club's Purchase of Property

¶ 12 In early 2009, the County and DNR negotiated a land swap that included the 72 acres the Club leased.

Concerned about its continued existence, the Club met with County officials to discuss the transaction's potential implications on its lease. The Club was eager to own the property to ensure its shooting range's continued existence, and the County was not interested in owning the property because of concern about potential heavy metal contamination from its long term shooting range use. In May 2009, the Board approved the sale of the 72–acre parcel to the Club.

¶ 13 In June, DNR conveyed to the County several large parcels of land, including the 72 acres leased by the Club. The County then immediately conveyed the 72–acre parcel to the Club through an agreed bargain and sale deed with restrictive covenants.

¶ 14 The bargain and sale deed states that the Club “shall confine its active shooting range facilities on the property consistent with its historical use of approximately eight (8) acres of active shooting ranges.” CP at 4088. The deed also states that the Club may “upgrade or improve the property and/ or facilities within the historical approximately eight (8) acres in a manner consistent with ‘modernizing’ the facilities consistent with management practices for a modern shooting range.” CP at 4088. The deed does not identify or address any property use disputes between the Club and County.

Lawsuit and Trial

¶ 15 In 2011, the County filed a complaint for an injunction, declaratory judgment, and nuisance abatement against the Club. The County alleged that the Club had impermissibly expanded its nonconforming use as a shooting range and...